Ryan Construction Services, LLC v. Robert Half International, Inc.

On
Appeal from the 334th District Court Harris County, Texas
Trial Court Cause No. 2014-14437A

Panel
consists of Chief Justice Frost and Justices Donovan and
Wise.

OPINION

Kem
Thompson Frost Chief Justice.

When
two companies discovered that a common employee allegedly had
stolen money, they brought suit against the
employee-placement firm, alleging negligence and Deceptive
Trade Practices Act violations in connection with the
firm's employee-background check. The trial court granted
summary judgment in favor of the employee-placement firm. We
affirm.

Factual
and Procedural Background

Accountemps,
a division of appellee/defendant Robert Half International,
Inc. specializes in placing accounting professionals with
companies to work on a temporary-to-permanent basis. Judd
Ryan, owner of appellant/plaintiff Ryan Construction
Services, LLC and appellant/plaintiff Builders Blueprint, LLC
contacted Robert Half International and asked for help
finding an accounting professional to employ. Robert Half
International representatives met with Ryan to discuss the
company's services. Ryan stated that those
representatives told him, "We check our people out. You
are getting the best when you work with Accountemps."
According to Ryan, the representatives showed him a form
authorizing Robert Half International to perform background
checks on candidates for potential employment.

The
Parties' Agreement

Robert
Half International recommended that Ryan Construction
Services, LLC hire Angela Eubanks. Ryan signed an agreement
with Robert Half International on behalf of Ryan Construction
Services. On the date Robert Half International contracted
with Ryan Construction Services to place Eubanks, Robert Half
International sent a letter to Ryan Construction Services
confirming Eubanks's placement under its "General
Conditions of Assignment and Terms of Payment." Judd
Ryan and Barbie Brown, on behalf of Ryan Construction
Services, signed various time sheets acknowledging receipt
and acceptance of the "General Conditions of Assignment
and Terms of Payment." The General Conditions of
Assignment included a section detailing the "Scope of
Background Inquiries." This section describes the way
Robert Half International checks references and also states:
"We have not screened for drug use, administered a
medical exam, conducted a criminal background check, or
engaged in any verification process other than [the reference
checks described above]."

Temporary
Placement to Permanent Placement

Shortly
after Eubanks began working at Ryan Construction Services,
Ryan asked her if she also would work for another one of his
companies, Builders Blueprint, LLC. Ryan did not disclose
this employment to Robert Half International. A few months
later, Ryan Construction Services informed Robert Half
International that it wanted to convert Eubanks, who had been
working as a temporary employee, to a permanent employee.
Robert Half International sent Ryan Construction Services a
letter confirming the end of Eubanks's temporary
employment through Robert Half International and her
conversion into a permanent employee of Ryan Construction
Services. The letter stated that "Accountemps checks
selected references on our candidates . . . and [t]o assist
you in determining whether or not you should conduct any
additional pre-employment background checks, we are enclosing
a complimentary copy of What You Should Know About
Background Checks." Ryan acknowledged he received
the letter and enclosure.

Robert
Half International conducted a seven-year criminal history
background check on Eubanks before she became a permanent
employee of Ryan Constructions Services. That background
check did not reveal any criminal history for Eurbanks.
Robert Half International did not share the results of the
criminal background check with Ryan Construction Services.

Alleged
Embezzlement by Placed Employee

Ryan
Construction Services and Builders Blueprint, LLC,
(collectively, the "Ryan Parties") allege that at
some point after Eubanks became a permanent employee, she
embezzled approximately $160, 000. When Ryan discovered
Eubanks had a criminal history, Ryan called Robert Half
International to confront the company about recommending an
employee with a criminal history and to report that the
employee had stolen money from Ryan Construction Services.
The Robert Half International representative told Ryan that
Robert Half International had conducted a criminal background
check that did not reveal any criminal history in the seven
years preceding the check. The history the Ryan Parties had
uncovered - Eubanks's conviction for securing execution
of a document by deception - occurred thirteen years before
the criminal background check.

Plaintiffs'
Claims

The
Ryan Parties filed suit against Robert Half International,
its bank, and Eubanks. In their live pleading, the Ryan
Parties alleged that Robert Half International (1) engaged in
negligent or grossly negligent conduct in failing to inform
them that Eubanks had a criminal conviction and (2) violated
the Texas Deceptive Trade Practices Act (DTPA) by engaging in
a false, misleading and deceptive course of conduct that led
the Ryan Parties to believe Robert Half International had run
a background check on Eubanks and that she had no criminal
history, representing that Robert Half International's
agreement had the benefit of a background check, failing to
disclose that Robert Half International's background
check included only the seven years before employment,
failing to disclose that Eubanks had a criminal history, and
acting unconscionably.

Summary
Judgment

Robert
Half International filed a lengthy summary-judgment motion
that contained both traditional and no-evidence grounds. The
Ryan Parties responded. The trial court granted Robert Half
International's summary-judgment motion. Robert Half
International then moved to sever the Ryan Parties'
claims against Robert Half International from the claims the
Ryan Parties asserted against the Ryan Parties' bank and
Eubanks. The trial court granted the motion to sever the
claims. Although the severance order contains language in
which the trial court stated that the order would not be
final until the parties submitted a new proposed judgment in
the severed case, because the order granted severance and the
trial court already had signed an order granting summary
judgment on the claims in the severed case, the trial
court's severance order finally resolved all claims among
all parties in the severed case.

Appeal

The
Ryan Parties now appeal the trial court's granting of
summary judgment in favor of Robert Half International. They
challenge the merits of the summary judgment as well as the
trial court's evidentiary rulings on the summary-judgment
proof.

Standard
of Review

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;In a
traditional motion for summary judgment, if the movant&#39;s
motion and summary-judgment evidence facially establish its
right to judgment as a matter of law, the burden shifts to
the nonmovant to raise a genuine, material fact issue
sufficient to defeat summary judgment. M.D. Anderson
Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23
(Tex. 2000). In reviewing a no-evidence summary judgment, we
ascertain whether the nonmovant pointed out summary-judgment
evidence raising a genuine issue of fact as to the essential
elements attacked in the no-evidence motion. Johnson v.
Brewer & Pritchard, P.C., 73 S.W.3d 193, 206- 08
(Tex. 2002). In our de novo review of a trial court&#39;s
summary judgment, we consider all the evidence in the light
most favorable to the nonmovant, crediting evidence favorable
to the nonmovant if reasonable jurors could, and disregarding
contrary evidence unless reasonable jurors could not.
Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582
(Tex. 2006). The evidence raises a genuine issue of fact if
reasonable and fair-minded jurors could differ in their
conclusions in light of all of the summary-judgment evidence.
Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d
754, 755 (Tex. 2007). When, as in this case, the order
granting summary judgment does not specify the grounds upon
which the trial court relied, we must affirm the summary
judgment if any of the independent summary-judgment grounds
is meritorious. FM Props. Operating Co. v. City of
Austin, 22 S.W.3d 868, 872 (Tex. 2000). Because the
trial court did not specify a basis ...

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